Rajendra Singh Khampa v. State of Uttarakhand

U.C. Pant lodged an FIR on 08.01.2004 at around 00:45 hours alleging therein that on 07.01.2004 around 23:30 hours when he was patrolling the city along with Constable Om Shankar and Shyam Kumar a person on seeing them, suspiciously tried to run. After getting caught, on inquiry, he told that he was in possession of charas, therefore he tried to run away. Thereafter, when the S.S.I. told him that he had a right to be searched in presence of a Magistrate or a Gazetted Officer, he replied 1 that he did not wish to be searched in presence of aforesaid Officers and the Police team was free to search him. Thereafter, charas wrapped in a polythene bag was recovered from right pocket of his jacket worn. As the recovery happened at night no shops were open and no other witness other than the Police officials were present at the spot. Thereafter, Constable Om Shankar was sent to police station to inform higher officials and to bring a weighing machine. The charas was weighed 225 grams and two samples of 50-50 grams and one sample containing rest of the charas was prepared and a recovery memo was thereafter made.

3. On the basis of above after preparing site plan, recording statement of witnesses and sending the charas to F.S.L. Agra and receiving the F.S.L. Report a charge sheet was filed by the Investigating Officer in the court below under Section 18/20 of N.D.P.S., 1985.

4. Thereafter learned Special Sessions Judge, Pithoragarh framed charges under Section 20 of N.D.P.S.,

1985. The charges were read over and explained to the accused, who pleaded not guilty and claimed to be tried.

5. To prove its case, the prosecution has examined PW1 (S.S.I. U.C. Pant) (informant), PW2 (Constable Om Shakar), PW3 (Constable Vinod Kumar), PW4 (S.I. Ranveer Singh) (Investigating Officer), PW5 (Constable Subhash Tyagi) to substantiate and prove the charge against the appellant.

6. After prosecution evidence, the statement of appellant was recorded under Section 313 of Cr.P.C. in which he stated that he was innocent. He further stated that all witnesses were Police men and therefore were not independent witnesses and could not be relied upon. 2

7. During trial as PW1 and PW2 were part of the patrolling team reiterated the facts of the prosecution story and supported it in its entirety.

8. PW3 on oath stated that on 07.01.2004 at around 23:50 P.M. Constabel Om Shankar reached the police station and informed that charas has been recovered from one Mr. Rajendra Singh Khampa during patrolling and he was here to inform higher officials and to take back weighing scale as all the shops were closed. He gave weighing scale and weights (baat) to him and informed higher officials about the incident.

9. PW4 was the Investigating Officer and he also supported the prosecution story and proved various documents and on oath stated that he has investigated the matter and has submitted the charge sheet.

10. PW5 on oath stated that he was posted as a Constable in the concerned police station and by an order dated 17.01.2004 was asked to carry the recovered charas to F.S.L. Agra. He further stated that on examination F.S.L. Agara opined the substance as charas.

11. The main thrust of argument advanced by learned counsel for the appellant is that it is a case of total non-compliance of Section 50 of N.D.P.S. Act, 1985; therefore the order cannot sustain in the eyes of law. He relied on multiple judgments of Apex Court on this point.

12. Per contra, State counsel submits that it is a chance recovery so it was not possible for compliance of Section 50 of N.D.P.S. Act 1985.

13. Having heard the learned counsel for the parties, perusing the material available on record and 3 going through Section 50 of N.D.P.S. Act, 1985 and case laws supplied by the learned counsel for the appellant, this Court is of the opinion that it was an admitted case of prosecution that search of the accused person was not carried in the presence of Magistrate or Gazetted Officer thereby defying the mandate of Section 50 of N.D.P.S. Act, 1985. I do not find favour with the argument advocated by State counsel as provision of N.D.P.S. Act, 1985 are draconian in nature and there should be strict compliance of provision of Section 50 of N.D.P.S. Act,

14. My view is further fortified by judgment of the Apex Court in the case of Arif Khan @ Aga Khan Vs. State of Uttarakhand reported in (2018) 18 SCC 380. Relevant paragraphs of the said judgment are quoted hereunder:- “18. What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remain no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab v. Baldev Singh and Vijaysinh Chandubha Jadeja.

19. Indeed, the later Constitution Bench decision rendered in Vijaysinh Chandubha Jadeja has settled the aforementioned questions after taking into considerations all previous case law on the subject.

15. Keeping in view the aforementioned principle of law laid down by Apex Court, this Court has to examine the question arising in this case as to whether the prosecution followed the mandatory procedure prescribed under Section 50 of the N.D.P.S. Act, 1985 while making search and recovery of the contraband “charas” from the appellant and, if so, whether it was done in the presence of a Magistrate or a gazette officer so as to make the search and recovery of contraband “charas” from the 4 appellant in conformity with the requirements of Section

16. In my considered view, the evidence adduced by the prosecution neither suggested and nor proved that the search and the recovery was made from the appellant in the presence of either a Magistrate or a Gazette Officer.

17. The upshot of the aforesaid discussions is that the appeal deserves to be allowed. Accordingly, present appeal is allowed and the impugned judgment and order dated 16.11.2016 passed by learned Sessions Judge, Pithoragarh in Special Sessions Trial No.11 of 2004, State Vs. Rajendra Singh Khampa is hereby set-aside. The appellant is on bail. He need not to surrender. His sureties be discharged.

18. Let the T.C.R. be immediately sent back to the trial court for consignment. SK (Pankaj Purohit, J.) 08.07.2025 5